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A Santa Barbara jury has awarded Oded and Anat Gottesman nearly $14 million in compensatory economic and non-economic damages for the loss of their child Yoni, who drowned in a Cathedral Oaks Athletic Club swimming pool in 2005.

The total will undoubtedly climb, however, as punitive damages have not yet been determined. That second phase begins Tuesday at 1:30 p.m. with brief opening statements by both parties followed by testimony. Because punitive damages must still be discussed in court and decided by the jury, the judge kept in place a gag order restricting comments to the media by involved parties.

Courtesy Photo

Yoni Gottesman

The jury needed one full day and most of two more to come to its decision in the case, in which Oded and Anat Gottesman sued 11 individuals and entities, including Cathedral Oaks Athletic Club and many of its employees, for the death of their four-year-old son, who drowned in August 2005, on the first day of a Cathedral Oaks children’s camp.

The jury began deliberating Thursday afternoon after listening to more than three weeks of testimony from dozens of witnesses, including the plaintiffs and several of the defendants. One day before the trial began, 10 of the 11 defendants in the case - Cathedral Oaks Athletic Club and staffers included - admitted they were negligent in the case. Cal-West denied it was negligent and said that it didn’t oversee the day-to-day operations of the club. But jurors unanimously determined Cal-West - operated by Richard Berti and a partner - was indeed negligent, and also that this negligence was a substantial factor in causing harm.

It was up to the jury to determine the involvement of the group, which oversees various health clubs in Southern California. On the stand, Berti denied close connection to the day-to-day business of Cathedral Oaks, but said he ran “financial oversight.” On the stand he blamed Cathedral Oaks manager Julie Main for many problems. He said she wore a “Cathedral Oaks hat,” not a Cal-West one. Main, however, had declared under oath that she oversaw five different clubs owned by Cal-West, a claim Berti denied.

Gottesman attorney Barry Cappello noted testimony in which Berti said he had missed much of his own son’s childhood because he was so driven by business. That drive for money was one of the reasons an unlicensed child care was run at Cathedral Oaks, Cappello alleged. In Cappello’s words, a retrofit would’ve cost too much money and Berti favored “profit over protection.” Cappello also showed Berti emails in which he complained about various problems with the Cathedral Oaks property, an attempt to show the jury his heavy involvement in operations.

There was no standard to determine how much the Gottesmans were entitled to, and attorneys for each side varied greatly in what they believed the price tag should be. Thursday, in front of a courtroom filled with more than 50 people, many of whom shed tears throughout the day, Cappello recommended the jury award the Gottesmans $20 million for the loss of Yoni Gottesman’s “love, companionship, comfort, care, assistance, protection, affection, society and moral support,” as it was phrased in the jury instructions. “No matter how smart the lawyers are, no matter how good they are,” Cappello said, “you decide how great the harm. Is there something we can do to balance this harm?”

Jerry Popovich, attorney for the athletic club and some of its workers, said Cappello’s suggestion was beyond an amount of reasonable compensation and is therefore punishment. Instead, he suggested compensation in the range of $1 million to $2 million.

But the jury - in what proved to be a climactic moment but with little emotion - came back with a number closer to Cappello’s, awarding $13,855,950 for negligence. In addition, they concluded the defendants were responsible for the $24,282 in funeral and burial expenses and $5,234 in medical expenses. Exactly when Yoni died was a key component argued vigorously because if he had died prior to medical treatment, the defense wouldn’t have had to pay for incurred medical expenses, including an ambulance response and doctor costs.

In addition, if the jurors found that the defendants weren’t responsible for medical expenses, then they couldn’t find the defendants responsible for punitive damages. During the trial, Cappello called a witness to testify that Yoni’s condition wasn’t irreversible, even after eight minutes in the water drowning. Improper CPR done by counselors, however, doomed Yoni. “This isn’t a drowning,” Cappello said. “This is a systemic failure of old processes.”

Defense attorneys, however, brought in experts who said the exact opposite, that after eight minutes in the pool Yoni had already died. After four minutes, one expert said, irreversible brain damage begins, and that eight minutes were just too much.

The key piece of evidence, which Cappello called the “perfect witness” in the case, was a surveillance video that showed the pool in the time leading up to, and including, Yoni’s drowning. The grainy video appears to show Yoni being dunked and tossed in the pool by one of the camp counselors. Not long after, the boy’s body can be seen in the video floating in the shallow end of the pool for several minutes. Meanwhile camp counselors are shown inattentive at the side of the pool, and one of the lifeguards leaves his station to go buy a soda. The jury saw the video multiple times throughout the course of the jury. Yoni was only 41 inches tall, one inch shorter than the pool at its shallowest end.

Cathedral Oaks didn’t have a license to run the camp, and pool time came at the end of the day, a time when a child is most worn out, according to experts who testified. It is unclear whether liability insurance will cover the damages because the facility was unlicensed.

Throughout the closing statements Thursday, photos of Yoni and his family were put in front of the jury as Cappello gave an impassioned, emotional plea to the jurors. The boy “injected fun and love into everything,” Cappello said. “They didn’t just lose a four-year-old. They lost a five-year-old and every year past that.”

In addition to doling out damages for negligence, the jury also had to determine if willful misconduct- “knowledge that injury is probable, as opposed to possible, and conscious failure to act to avoid peril,” according to a legal definition provided by Popovich-was committed.

Popovich claimed no. “It doesn’t matter how many layers of negligence you stack, it does not become willful misconduct,” Popovich said.

In addition, there was “clear and convincing evidence” that the conduct of the same four was done with malice, oppression and fraud, which means punitive damages will now be discussed.

Since compensatory payment cannot include damages that punish Cathedral Oaks or Cal-West, or attempt to make them an example, punitive damages are in place to do that. Jurors will hear testimony and look into assets, and will award the resulting damages to the estate of Yoni Gottesman. There are various guidelines as to how punitive damages are awarded, and those will no doubt be discussed in coming days.

"This isn't a drowning," Cappello said. "This is a systemic failure of old processes."

No, it's simple irresponsibility and stupidity, which never should have happened.

This is a cautionary tale to how our society is run--lots of people in the chain of command, but nobody seeming to be responsible. As for how long one can survive underwater, it depends on the core body temperature--the colder the temperature, the better chances of survival without brain damage.

So here it is in black and white: No responsibility and the dumbing down process coming together and killing someone. Hopefully, people will learn from this.

Can I offer a prayer to Yoni's memory? The child only knew happiness and his family's love. Sweet boy, rest in peace. I wish comfort to his parents and to the people who surely didn't intentionally let him drown. bh